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Honest and Reasonable Mistake and Driving Whilst Suspended/Disqualified (Vic)

A person who drives a motor vehicle whilst their driver’s licence is suspended or disqualified is guilty of a criminal offence. Under section 30(1) of the Road Safety Act 1986, a person must not drive while the authorisation given to him or her is suspended or disqualified. A valid legal defence to this charge is honest and reasonable mistake of fact. This article outlines how that defence operates in relation to this offence.

Penalties for driving whilst disqualified or suspended

The offence of driving while the authorisation given to you was suspended or disqualified carries the following maximum penalties:

  • A fine not exceeding $39,652.80 (240 penalty units); or
  • 2 years imprisonment; or
  • Both.

It is common for the courts to impose a custodial sentence if the accused has a number of prior matters for driving whilst their licence was suspended or disqualified.

What must be proven?

In order to be found guilty of driving whilst suspended, the prosecution must prove, beyond a reasonable doubt the following elements:

  • That the accused was driving on a public road or an area related to a public road, and
  • At the time their driver’s licence was suspended or disqualified.

Driving whilst the authorisation given to you was suspended or disqualified is a strict liability offence, meaning that the prosecution only needs to prove that you were driving, and your licence was suspended/disqualified. They do not need to prove that you had the intent to commit the offence (i.e. to drive whilst your licence was suspended or disqualified); it is sufficient that the act was simply committed.

Although this charge does not carry a mandatory licence suspension, the courts have the discretion to interfere with the defendant’s licence should they deem it necessary.

The police may also impound your vehicle at the time of the offence or make an application for a further impoundment or an application for forfeiture of your vehicle which will come before the court on the day of your court hearing. You will be required to show that the vehicle being impounded or forfeited will cause exceptional hardship.

If an accused held a mistaken and reasonable belief that their licence was not suspended or disqualified at the time of driving, then this would raise a valid defence against the charge. This is the defence of honest and reasonable mistake of fact.

Honest and Reasonable Mistake

The only available defence to the charge of driving while the authorisation given to you was suspended or disqualified is that of honest and reasonable mistake of fact. However, there must be a mistake as to a fact; mere ignorance is not sufficient.

The accused must demonstrate:

  1. That they were honestly not aware their licence was suspended or disqualified; and
  2. That it was reasonable in the circumstances that they were not aware their licence was suspended or disqualified.

The burden is on the accused to raise this defence. However, once it has been raised, the prosecution must prove that the honest and reasonable belief did not exist.

What is not honest and reasonable mistake?

Merely stating that you did not receive a letter from VicRoads or that you were moving homes and therefore you were in between addresses and couldn’t check the mail would not be sufficient to successfully raise the defence of honest and reasonable mistake. The courts often state that as the holder of the driver’s licence, it is your duty to know the status of your licence at all times and make the relevant enquiries with VicRoads if there is any uncertainty. VicRoads has also now developed an online VicRoads Account where a person can view the status of their licence at all times.

It is important to note that even if your licence was suspended in error and you are aware of the suspension or disqualification, you should not drive a motor vehicle until the error has been rectified as you may still be charged with driving whilst the authorisation was suspended or disqualified and will still need to attend court.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

Ulas Guldogan - Solicitor - Melbourne

This article was written by Ulas Guldogan - Solicitor - Melbourne

Ulas Guldogan holds a Bachelor of Laws and a Bachelor of Business majoring in Finance. He completed his Practical Legal Training at Leo Cussen Centre for Law. Ulas has a strong interests in Criminal Law, Family Law, Civil Law and Banking and Finance Law. When he is not entrenched in work, Ulas enjoys playing and watching AFL and basketball as...

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